Thomas, J., dissenting
“merge” prior to publication in the “official” code, the very provision calling for that merger makes clear that the annotations serve as commentary, not law.
As additional evidence that the annotations do not represent the will of the people, the General Assembly does not enact statutory annotations under its legislative power. See Ga. Const., Art. III, §1, ¶1 (vesting the legislative power in the General Assembly). To enact state law, Georgia employs a process of bicameralism and presentment similar to that embodied in the United States Constitution. See Ga. Const., Art. III, §5; Art. V, §2, ¶4. The annotations do not go through this process, a fact that even the majority must acknowledge. Ante, at 10; Ga. S. 52, Reg. Sess., §54(b) (2019–2020) (“Annotations … except as otherwise provided in the Code … are not enacted as statutes by the provisions of this Act”).
Second, unlike judges and legislators, the creators of annotations are incentivized by the copyright laws to produce a desirable product that will eventually earn them a profit. And though the Commission may require Lexis to follow strict guidelines, the independent synthesis, analysis, and creative drafting behind the annotations makes them analogous to other copyrightable materials. See Brief for Matthew Bender & Co., Inc., as Amicus Curiae 4–7.
Lastly, the annotations do not impede fair notice of the laws. As just stated, the annotations do not carry the binding force of law. They simply summarize independent sources of legal information and consolidate them in one place. Thus, OCGA annotations serve a similar function to other copyrighted research tools provided by private parties such as the American Law Reports and Westlaw, which also contain information of great “practical significance.” Ante, at 17. Compare, e.g., OCGA §34–9–260 (annotation for Cho Carwash Property, L. L. C. v. Everett, 326 Ga. App. 6, 755 S. E. 2d 823 (2014)) with Ga. Code Ann. §34–9–260 (Westlaw’s annotation for the same).
